the prevailing market rate for their law students' time.
Plaintiffs seek compensation for the 347.20 hours
of law student time at the prevailing market rate for law student work on complicated federal litigation, which they claim to be $ 70 per hour. Plaintiffs' most current data evidencing the prevailing market rate of law students comes from the U.S. Attorney's fee matrix. (As discussed above, the Laffey fee matrix charts fees only up to 1989, the U.S. Attorney's Office's matrix charts fees up to 1992.) Because plaintiffs' evidence is practically unrefuted, and because their fee request is based upon their most current data, this court will award plaintiffs the $ 70 per hour rate requested for the work of their law students.
C. Current Rates
To compensate for the delay in the payment of their attorney's fees, plaintiffs ask that the final fee award -- both for counsel and for the law students who worked on the case -- be based on current rates rather than historic rates. That is, plaintiffs request prevailing market rates earned by lawyers today, rather than the rates that prevailed in the market when counsel actually worked on Covington.
This court clearly has the authority to grant plaintiffs either current or historic rates. Ordinarily, district courts should award historic rates by "simply matching the billing rate governing a particular period to the hours reasonably expended that period." Laffey, 746 F.2d at 20 n. 104. However, to roughly compensate for delay in payment, a district court has the authority to award current market rates instead of historic market rates,
so long as the use of current instead of historic rates would not overcompensate counsel, "generating a windfall for the plaintiff's attorneys."
Generally, to collect current rates plaintiffs must show that the delay in fee payment has produced some degree of hardship such that an award of current rates does not produce a windfall. However, in the present case defendants appear to have conceded plaintiffs' right to receive current rates for work done years ago. By failing to request production for this court of an annual breakdown of the number of hours that plaintiffs' counsel expended on Covington, defendants have made it impossible for this court to award historic rates. It is impossible to compute the fee counsel would have earned in the market each year -- i.e., the historic rates -- without knowing how many hours plaintiffs' counsel expended in each year of the Covington litigation. Defendants could have discovered this information from plaintiffs by filing with this court a motion for leave to conduct discovery necessary to file its brief in opposition. By failing to provide this court with the information necessary for it to award historic rates, defendants appear to have conceded plaintiffs' right to current rates. Accordingly, this court will award plaintiffs current rates for all hours expended on the underlying litigation of Covington.
D. Fees for Fee Litigation
The final issue before this court is whether plaintiffs' counsel are entitled to fees for litigating this fee petition. Plaintiffs have provided detailed records for Mr. Gaffney (Gaffney Decl. at App. Ex. D (claiming 62.7 hours)); Mr. Schember (Schember Decl. at P 12 (claiming 12.1 hours)); and a law clerk (Gaffney Decl. at App. Ex. E (claiming 27.6 hours)) recording time reasonably spent on this fee litigation as of the date of the motion for fees.
Plaintiffs are entitled to compensation from defendants for all hours reasonably expended on this fee petition. See Sierra Club, 769 F.2d at 811; Environmental Defense Fund v. EPA, 217 U.S. App. D.C. 189, 672 F.2d 42, 62 (D.C. Cir. 1982). Because defendants have conceded the reasonableness of the hours claimed in the original motion, and because plaintiffs' counsels' declarations regarding these claimed hours are sufficiently detailed, this court will not independently scrutinize the hours claimed. Instead, this court will assume that when the number of hours is uncontested, some factor apparent to the parties justifies the number of hours counsel claims. See Sierra Club, 769 F.2d at 812.
Although defendants concede that the claimed time expended on this fee litigation is a reasonable amount, defendants dispute their liability for that time. Defendants contend -- without citing any statutory provision or case law in support -- that if plaintiffs do not "prevail" on their request for attorney's fees, plaintiffs may not be awarded attorney's fees for the fee litigation. Even under defendants' novel theory, plaintiffs still could collect fees for this fee litigation. Plaintiffs are indeed prevailing on their motion for fees per this memorandum opinion. Plaintiffs' counsel are entitled to a reasonable hourly rate for all the hours they claim they have reasonably expended on the fee litigation itself.
This court also grants plaintiffs leave to submit a supplemental motion to request compensation for reasonable time spent on this fee litigation since the filing of the original motion.
For litigating the merits of Covington, plaintiffs are awarded fees in accordance with the chart below:
Attorney Hours Prevailing Market Rate Amount
Schember 930.64 $ 260 per hour $ 241,966.40
Gaffney 65.70 $ 260 per hour $ 17,082.00
Delaney 303.11 $ 160 per hour $ 48,497.60
Hager 38.50 $ 160 per hour $ 6,160.00
Law Graduates 43.85 $ 85 per hour $ 3,727.25
Law Students 347.20 $ 70 per hour $ 24,304.00
Total Fees for Merits $ 341,737.25
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